That question remains to be decided by the factfinder. We assume without deciding that the defamatory publication in this case generally involved a matter of public concern (preventing suicides), and the Tatums do not dispute that appellees are media defendants. Communications Law People who were familiar with the situation understood the column to refer to Paul and his parents. As to whether Blow misrepresented his investigation and the sources of his information, Blow testified by deposition that he learned the information about Paul's death that he used in his column from one of his colleagues at DMN. Am. O. The other affidavit is by Dr. Joseph Kass, a medical doctor and neurologist who possesses expertise in neurocognitive disorders such as traumatic brain injuries. But Tomaso and Sherrington were also deposed, and they both testified that they did not remember having a conversation with Blow about Paul's death. In our view, this fact does not relate to the DMN's obituary services themselves, and thus it does not constitute information concerning those services, as is required by 17.46(b)(24). We perceive no extravagant exaggeration in the column. See Zerangue v. TSP Newspapers, Inc., 814 F.2d 1066, 107071 (5th Cir.1987) (courts have upheld actual malice findings when the supposed source of the story disclaimed giving the information); see also Celle v. Filipino Reporter Enter., Inc., 209 F.3d 163, 190 (2d Cir.2000) (defendant's self-contradictory testimony about the source of his information supported actual malice finding). Search by Name. The Tatums wrote an obituary for Paul and paid DMN to publish the obituary in the Dallas Morning News newspaper. Through honesty, she's trying to erase some of the shame and stigma that compounds and prolongs mental illness. Id. Civ. Read Tatum v. Dall. Heritage Capital, 436 S.W.3d at 875; Main v. Royall, 348 S.W.3d 381, 389 (Tex.App.Dallas 2011, no pet.). Rather, the Tatums contend that DMN should have disclosed that its columnist, Blow, had previously written columns critical of obituaries that had appeared in the newspaper. Naturally, with such a well-known figure, the truth quickly came out. We are not necessarily convinced that Knopf's first statement about Haynes was an unverifiable opinion. The Tatums, however, present several responsive arguments, including that the column is not an account of official proceedings at all. Appellees make a threshold argument that the Tatums must satisfy the standard for libel per se because they did not plead or prove libel per quod or special damages. These matters create a genuine fact issue regarding whether the column's contents would have warned a reasonably prudent publisher of its defamatory potential. at 6667. Id. The court also dismissed DMN's counterclaim with prejudice. We review a summary judgment de novo. Id. Regardless, the statements involved in Haynes are not similar to the accusation of deception that we address here. We resolve this question in the Tatums' favor. Add . The truth of the column's gist hinges on whether the Tatums intended to deceive when they wrote the obituary, not necessarily on the strength of the scientific evidence supporting their belief about the cause of Paul's suicide. 17.46(b)(24) (West 2011). at 100001. The Tatums sued both appellees for libel and libel per se. It has received nine Pulitzer Prizes since 1986, as well. The Texas Supreme Court dismissed a lawsuit Friday in which a couple claimed The Dallas Morning News defamed them when it published a column disclosing their decision to omit information about their teenage son's suicide from a paid obituary. Appellees further argue that the column does not omit or juxtapose facts in such a way as to make its gist false. at 62 ([S]tatements that are not verifiable as false cannot form the basis of a defamation claim.); see also Bentley v. Bunton, 94 S.W.3d 561, 57985 (Tex.2002) (accusations that a judge was corrupt were sufficiently verifiable to constitute actionable statements of fact). Prac. See id. And for us, there the matter ended. Although the Tatums' mental states when they wrote the obituary may not be susceptible of direct proof, we conclude that they are sufficiently verifiable through circumstantial evidence, such as the investigation into the possible causes for Paul's suicide that the Tatums undertook, to make the column's defamatory gist about them verifiable under Milkovich and Neely. The column was privileged as a fair, true, and impartial account of official proceedings. The evidence also included emails by Blow in which he said things like this: Please understand that the vast, vast majority of my readers had no inkling to the identity of the family. court opinions. Viewed in the light most favorable to the Tatums, the evidence raised a genuine issue of material fact as to the actual malice element. In the ePaper section, you'll find: A digital replica of the print edition to give you all the news you need each day Additional ePaper-only bonus content, including extra comics and puzzles Appellees filed a traditional and no-evidence summary judgment motion. Did appellees conclusively prove the official proceeding privilege? Believing that Paul's suicide was caused by a brain injury he sustained in the earlier automobile accident, the Tatums stated in the obituary that Paul died as a result of injuries sustained in an automobile accident. The obituary was published on May 21, 2010. I think it's part of our survival mechanism. There was also evidence that Blow did not adhere to his usual practice of investigation when he wrote the column. Obituaries Section. We agree that the column's gist associates the obituary with deception, which denotes an intention to deceive, often for personal advantage. Admiralty & Maritime Law Dec 19, 2022 "Sooner or later someone is going to have to give this area credit for good coaching, good kids and good programs." Appellees also direct us to Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222 (7th Cir.1993). denied) (objection that opinions are speculative can be raised for the first time on appeal). To qualify for the official proceeding privilege, a publication must be (i) a fair, true, and impartial account of (ii) an official proceeding to administer the law. Herald, Inc., No. But in late 2015, the 5th District Court of Appeals ruled that the lawsuit could go forward. Did the Tatums raise a genuine fact issue that appellees acted with the necessary degree of culpability? Turner, 38 S.W.3d at 114. dallas morning news v tatum oyezitalian catering delray beach. See Neely, 418 S.W.3d at 62; Bentley, 94 S.W.3d at 57985. (3)the alleged defamation must be germane to the plaintiff's participation in the controversy. 17.46(b)(24); see also Brennan v. Manning, No. Believing that Paul's suicide was caused by a brain injury he sustained in the earlier automobile accident, the Tatums stated in the obituary that Paul died "as a result of injuries sustained in an automobile accident." Did the Tatums raise a genuine fact issue regarding whether the column was about them? View "Dallas Morning News, Inc. v. Tatum" on Justia Law. We thus conclude that the Tatums pled claims for both libel per quod and libel per se. (the undisclosed information must be about the goods or services being rendered). Turner, 38 S.W.3d at 114. Later in the opinion, the Court held that the defendant's statement that Milkovich committed perjury was sufficiently factual to be susceptible of being proved true or false. Id. After the accident, he began sending incoherent text messages to friends. We held that these affidavits provided clear and specific evidence that the post was about Misko, even though Misko was not named in it. There was a car crash, all right, but death came from a self-inflicted gunshot wound [page break] in a time of remorse afterward. See id. Awareness, frank discussion, timely intervention, treatmentthose are the things that save lives. This is some evidence of actual malice. Copyright Calling someone a liar and accusing someone of perjury, as occurred in those cases, both implicate the person's mental state, because both liar and perjury denote the willful telling of an untruth. Some obituary readers tell me they feel guilty for having such curiosity about how people died. Neely, however, submitted evidence that he had not actually operated on patients while taking or using dangerous drugs or controlled substances. Although the column does not expressly make these assertions, roughly the last third of the column discusses the prevalence of suicide (specifically among young people), laments public silence about suicide's frequent cause (mental illness), and concludes, Awareness, frank discussion, timely intervention, treatmentthose are the things that save lives. The evidence shows that DMN published Paul's obituary, and the Tatums do not allege that the obituary itself did not conform to their order. Accordingly, because there is no evidence of a public controversy that could make the Tatums limited-purpose public figures, we conclude that the Tatums are private figures for purposes of this summary judgment appeal. By statute, a newspaper or other periodical enjoys a privilege against libel actions regarding the publication of certain matters, including (i) a fair, true, and impartial account of an official proceeding to administer the law, Civ. If, as concerns the present case, the plaintiff is a private individual rather than a public official or public figure, the elements of defamation are: (1) the defendant published a statement, (2) the statement was defamatory concerning the plaintiff, and (3) the defendant acted with negligence regarding the statement's truth.2 Neely, 418 S.W.3d at 61; WFAATV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex.1998). 2015 WL 5156908, at *6 n.6. Commercial Record Daily Business newspaper published in Dallas, Texas. Because we conclude that the evidence raised a genuine fact issue regarding whether the column was true or substantially true regarding the Tatums, we need not decide which side had the burden of proof. According to the court, the Tatums chose the wording of the obituary to reflect their conviction that Pauls suicide resulted from suicidal ideation arising from a brain injury [sustained in the car crash] rather than from any undiagnosed mental illness.. at 62; McIlvain v. Jacobs, 794 S.W.2d 14, 15 (Tex.1990). As explained above, a false gist is substantially true and nonactionable if it is no more damaging to the plaintiff's reputation than a truthful publication would have been. Defamation has two forms: slander and libel. We also conclude that the evidence raises a genuine fact issue as to actual malice. We remand the case for further proceedings consistent with this opinion. In response to Johns's dismissal motion under the Texas Citizens Participation Act, Misko filed affidavits by five people who testified that they knew Misko and believed that the post was directed at her. Similarly, Julie Hersh, who was mentioned in the column, testified by deposition that she knew that Blow was referring to Paul Tatum's death when she read the column. at 47. Antitrust The Dallas Express a newspaper printed by and for the city's African American community ALSO essential sadly, only the years 1919-1924 have been scanned, here The Jewish Monitor published in Fort Worth, serving the DFW (and Texas) Jewish community, 1919-1921, here The Texas Jewish Post, 1950-2011, here at 10. Under Supreme Court precedents, a defamation plaintiff must prove that the defendant acted with actual malice if the plaintiff is a public official, a public figure, or a limited-purpose public figure. The distance between the column's discussion of Paul's case and its discussion of mental illness is not so great that a reader of ordinary intelligence could not connect the two, and the closing exhortation for frank discussion, timely intervention, and honesty tends to tie the end of the column back to the two specific illustrations of deception. Saying someone is popular is not inconsistent with the premise that he is mentally ill, nor is asserting that someone committed suicide out of remorse over a car crash inconsistent with the premise that he was mentally ill. Because we conclude that the column is capable of a defamatory meaning, there is at least a fact issue regarding this element, and appellees' traditional and no-evidence grounds attacking that element cannot support the trial court's judgment.4. Generally speaking, the column's italicized words quoted above reflect a theme of alleged dishonesty by people, including those who wrote Paul's obituary, who refuse to acknowledge that someone committed suicide. That lawsuit was dismissed, and the Tatums appealed. Because the evidence in Neely raised a genuine fact issue as to whether a news broadcast was substantially true, the court held that the defendants were not entitled to summary judgment based on the fair comment privilege. Immigration Law The Dallas Morning News Homepage. Appellants John and Mary Ann Tatum sued appellees Steve Blow and The Dallas Morning News (DMN) for libel regarding a column that Blow wrote and DMN published one month after the Tatums' son Paul committed suicide. Entertainment & Sports Law In their second appellate issue, the Tatums contend that the trial court erred by granting summary judgment on their DTPA claims against DMN. Neely's substantial truth analysis is instructive. Id. We agree with the Tatums. Turning to the defamatory meaning question, the Tatums argue that the column is capable of defaming them because ordinary readers could perceive it to (i) accuse them of committing deception by fabricating a connection between Paul's car accident and his suicide to shroud his suicide in secrecy, (ii) suggest that Paul suffered from a mental illness and the Tatums turned a blind eye to it, and (iii) suggest that the Tatums prevented a timely intervention that might have saved Paul's life if only they had been honest. In our analysis of this question, we focus on DMN's second no-evidence ground and particularly the first requirement of 17.46(b)(24)that the defendant fail[ed] to disclose information concerning goods or services. Id. Insurance Law Apply Here Whether a publication is capable of a defamatory meaning is initially a question for the court. We conclude that the Tatums adduced no evidence of this requirement. c.Did the Tatums raise a genuine fact issue as to negligence and actual malice? Fifth District of Texas at Dallas . Julie recently wrote a blog item titled Don't omit from the obit, urging more openness about suicide as a cause of death. Dist., 858 S.W.2d 337, 341 (Tex.1993) (A motion [for summary judgment] must stand or fall on the grounds expressly presented in the motion.). Similarly, in Bentley the Texas Supreme Court considered whether repeated statements that a particular judge was corrupt were nonactionable statements of opinion. Select your device from the three options below: Smartphone or Tablet Browser Desktop or Laptop Download the free iPad App We determine substantial truth by assessing the publication's gist. See id. Trusts & Estates The next question is whether the false gist of the column is nevertheless substantially true. 16-0098 THE DALLAS MORNING NEWS, INC. AND STEVE BLOW, PETITIONERS v. JOHN TATUM AND MARY ANN TATUM, RESPONDENTS ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS Argued January 10, 2018 JUSTICE BROWN delivered the unanimous opinion of the Court with respect to Parts I, II, The Supreme Court reversed, holding that the columns accusation of deception was reasonably capable of injuring the Tatums standing in the community but that Blows implicit statement that the Tatum acted deceptively was an opinion and thus not actionable. Prac. We conclude that there was more than a scintilla of evidence showing more than a mere failure to conduct a reasonable investigation. 3. The Tatums' DTPA claims are based on 17.46(b)(24) of the DTPA, which provides that it is a false, misleading, or deceptive act or practice to fail [] to disclose information concerning goods or services which was known at the time of the transaction if such failure to disclose such information was intended to induce the consumer into a transaction into which the consumer would not have entered had the information been disclosed. Tex. Tax Law Gacek v. Owens & Minor Distrib., Inc., 666 F.3d 1142, 114748 (8th Cir.2012); Scholz v. Bos. They also argue that the description of Paul as popular is inconsistent with an imputation of mental illness, as is the assertion that he committed suicide in a time of remorse after a car crash. Consumer Law Free Newsletters at 187. Health Care Law The Tatums argue that appellees bear the burden of proof on truth or substantial truth, so the no-evidence ground is invalid. If you have STRONG suspicions to whom do you turn them over? Id. Blow testified that he did not review any documents regarding Paul's death or the car accident earlier that night, did not interview anyone with the Dallas Police Department or the medical examiner's office, and did not attempt to contact the Tatums before drafting the column. We reject the Tatums' second appellate issue. Even if the statements in a publication are not defamatory when taken individually, a publication can be defamatory if it creates a defamatory impression by omitting material facts or juxtaposing facts in a misleading way. In this libel-by-implication case, a column written by Steve Blow and published by The Dallas Morning News (collectively, Petitioners) was reasonably capable of meaning that John and Mary Ann Tatum acted deceptively and that the accusation of deception was reasonably capable of defaming the Tatums. at 1020. Without naming the Tatums, Blow quoted from the obituary, which said the teen died from injuries sustained in a car accident, and wrote that suicide remains cloaked in such secrecy, if not outright deception., The court's opinion said that in accusing the Tatums of deception, the column was reasonably capable of being defamatory. Appellees' summary judgment motion argued that they conclusively negated the element of actual malice, that the Tatums could produce no evidence of actual malice, and that the Tatums could produce no evidence of negligence if that standard applied. The above parts alone could cause a person of ordinary intelligence to read the column as accusing the Tatums of deceit by writing an obituary that stated a false cause of Paul's death and concealed the true cause of his death (for their own self-benefit and to the detriment of society as a whole). The column omits the reasons why the Tatums believed their account of the cause of Paul's suicide was true. See Hancock v. Variyam, 400 S.W.3d 59, 64 (Tex.2013) (Defamation per quod is defamation that is not actionable per se.). A reasonable juror could conclude that Blow was not honest when he testified about the sources of his information about Paul's death. 8. of Tex., Inc. v. Tex. Steve Blow is a columnist for The Dallas Morning News. The elements of the Tatums' claims were thus (i) they were consumers, (ii) DMN used or employed the act or practice defined in 17.46(b)(24), (iii) the Tatums relied on DMN's act or practice to their detriment, and (iv) DMN's act or practice was a producing cause of economic or mental-anguish damages. According to an opinion from the Texas Supreme Court that reinstated a lower court ruling that favored the Morning News, the Tatums contend their son showed no sign of mental illness or. Did the Tatums raise a genuine fact issue regarding whether the column was neither true nor substantially true? Supreme Court of Texas. DC-11-07371 . 16-0098 Supreme Court of Texas May 11, 2018. We acknowledge that evidence of a negligent investigation, standing alone, does not raise a fact issue on actual malice: [T]he failure to investigate the facts before speaking as a reasonably prudent person would do is not, standing alone, evidence of a reckless disregard for the truth, but evidence that a failure to investigate was contrary to a speaker's usual practice and motivated by a desire to avoid the truth may demonstrate the reckless disregard required for actual malice. See Neely, 418 S.W.3d at 62 ([S]tatements that are not verifiable as false cannot form the basis of a defamation claim.); see also Am. After West's election, Thomson ran columns asserting that before the election West had opposed a proposal that the town should purchase a municipal power system, but that he changed his position after he was elected. Learn more about FindLaws newsletters, including our terms of use and privacy policy. 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